Environmental Decisions of the U.S. Court of Appeals, all Circuits. Summaries provided by Waste Information & Management
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Wednesday, September 3, 2008

Sep 2: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-11537. As explained by the Appeals Court, this Clean Air Act (CAA) case involves a dispute over what triggers the U.S. EPA's statutory duty to object to the issuance of a Title V operating permit under 42 U.S.C. § 7661d(b)(2). The CAA requires the EPA Administrator to object to an operating permit “if [a] petitioner demonstrates to the Administrator that [a] permit is not in compliance with the requirements of [the Clean Air Act].” Id. The Sierra Club and the Coosa River Basin Initiative, the Petitioners in the case, challenge operating permits issued to the Georgia Power Company.

In mounting their challenge before the EPA Administrator, Petitioners relied exclusively on the Agency’s own violation notice and a subsequent complaint filed against Georgia Power in an unresolved civil enforcement action. The EPA Administrator refused to object. He found the Petitioners had not satisfied their burden of demonstrating the Georgia Power permits were not in compliance with the Act. Petitioners asked the Appeals Court to force the Agency to issue objections to the permits. Georgia Power Company, Oglethorpe Power Corporation, and the Georgia Environmental Protection Division intervened on behalf of EPA.

The Appeals Court said, "We deny the request because we hold the EPA Administrator’s actions fell within the bounds of his discretion: A violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator’s duty to object under 42 U.S.C. § 7661d(b)(2)."

In summary, the Appeals Court said, ". . . we conclude the EPA has offered a reasonable interpretation of the statute that deserves deference: Title V operating permits are required to contain all applicable clean air requirements, see 42 U.S.C. § 7661c(a), and under § 7661d(b)(2) a petitioner must demonstrate to the Administrator that a permit does not contain a requirement that is applicable to that permit’s source. Here, Petitioners only offered evidence that the EPA had initiated proceedings to resolve the applicability of PSD [prevention of significant deterioration] requirements to the Bowen and Scherer plants. This evidence, without more, was insufficient to trigger the Administrator’s duty to object to the permits because the EPA had discretion to reasonably conclude the applicability of PSD limits to the Bowen and Scherer plants was still very much unresolved. Therefore the EPA Administrator did not act arbitrarily in declining to object to the Bowen and Scherer permits, which did not contain PSD-related limits or compliance schedules." While the petition was denied the Appeals Court noted that the EPA action against Georgia Power is still unresolved.

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